posted at 11:35 am on August 2, 2010 by Ed Morrissey

The federal bench giveth … and the federal bench taketh away. Federal judge Henry Hudson has refused to dismiss a challenge from Virginia on the constitutionality of the individual mandate in ObamaCare. The case will have to move to trial, and could imperil the entire overhaul:

A judge on Monday refused to dismiss the state of Virginia’s challenge to President Barack Obama’s landmark healthcare law, a setback that will force his administration to mount a lengthy legal defense of the overhaul effort.

U.S. District Judge Henry Hudson refused to dismiss the state’s lawsuit which argues the law’s requirement that its residents have health insurance was unconstitutional, allowing the challenge to go forward.

Expect the Left to go after Judge Hudson. George W. Bush appointed him to the federal bench in 2002, following a career in the state bench and also in the US Marshal Service as director during Bush 41′s administration. The Right showed no reluctance to point out Susan Bolton’s appointment by Bill Clinton, and turnabout is not just fair play but de rigueur by now.

It matters little, anyway. Virginia wasn’t the only state preparing a challenge to this law, nor was it even first to file a challenge. This law will go to the Supreme Court from many directions, and there are more than enough constitutional grounds for judges to allow hearings on it, regardless of what Pete Stark thinks.

Besides, Hudson only refused to dismiss the lawsuit. He hasn’t yet ruled on any of the arguments in the case, except to rule that Virginia has a case to argue that the federal government overreached. What we know now is that at least one court will hear that case — and that’s the first step to checking the power of Washington.

Update: Hudson did note the unprecedented nature of the administration’s use of the Commerce Clause to justify ObamaCare’s mandate:

The guiding precedent [on the Commerce Clause] is informative but inconclusive. Never before has the Commerce Clause and Necessary and Proper Clause been extended this far. At this juncture, the court is not persuaded that the Secretary has demonstrated a failure to state a cause of action with respect to the Commerce Clause element.

Again, this doesn’t mean Hudson’s ruling against it, but it means he seems pretty skeptical that these clauses can be stretched this far. (via The Corner)

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